Waldlaw Blog

Wednesday, December 28, 2005

Thinking about Surrogacy

I find myself starting a lot of sentences these days with: "Back when I was 20 and thought I had all the answers...." When I was 20, I was a Women's Studies major at the University of Massachusetts/Amherst, and surrogacy wasn't even a twinkle in most people's eyes yet. In fact, it was when I was in law school that the Baby M case was decided, which was the first time most of us had thought about surrogacy. I was outraged by that decision, whereby the "surrogate" who had carried the baby to term and given birth to her was found to have no parental rights whatsoever. As a woman, as a feminist, the concept that women could hire out our wombs without creating any legal relationship whatsoever with the resulting babies was, well, creepy. It seemed ... I don't know ... Orwellian or something. Too much like Margaret Atwood's The Handmaid's Tale. (If you aren't familiar with it, this is a novel from the 1980's, described on amazon.com as follows: "respected Canadian poet and novelist Atwood presents here a fable of the near future. In the Republic of Gilead, formerly the United States, far-right Schlafly/Falwell-type ideals have been carried to extremes in the monotheocratic government. The resulting society is a feminist's nightmare: women are strictly controlled, unable to have jobs or money and assigned to various classes: the chaste, childless Wives; the housekeeping Marthas; and the reproductive Handmaids, who turn their offspring over to the "morally fit" Wives.") As I say, surrogacy seemed creepy. Now, as I have matured, I find the surrogacy issue far more complex. I represent many gay men in my practice who have become parents through surrogacy, and it has been a joy to share this process with them. There are many states where adoption is hard or impossible for gay men due to some combination of sexism and homophobia, and surrogacy becomes the only way for men in these states to become parents. For many other men, the possibility of participating so intimately in bringing a child into the world would be only a dream without surrogacy, and helping make these dreams come true is one of the best things about doing the kind of law I do. But still.... I recently bought a refrigerator magnet that I've stuck on the file cabinet in my office. It says: "Believe those who seek the truth. Doubt those who find it." I continue to seek my full truth on the surrogacy issue. So, as we head into 2006, here are some of the "philosophical" surrogacy-related issues I continue to grapple with: What are the implications of moving toward pre-birth determinations of parenthood, in terms of abortion rights? In these times of increasingly scary attacks on a woman's right to procreative choice, aren't we aligning with the anti-abortion movement when we fight to have "unborn children" recognized as legal beings by the courts? If we get prebirth parentage orders for couples using surrogacy, does this mean they can prevent their "carriers" from getting an abortion? Should it? And while we're on the issue of the rights of gestational carriers, do we really believe that a woman who carries a baby to term and gives birth should have no legal rights whatsoever regarding that baby? As a woman who has given birth twice myself, I can attest that the experience of gestating a baby -- feeling it begin to move, sharing my blood, oxygen and nourishment with it for 8 months -- and then bringing it out into the world through childbirth -- is the most profoundly intimate experience of my life. Genetics, by my reckoning, is the least of it. So do we want the law to be that the woman who just did all that has no right to ever see the baby again, regardless of her heartfelt wishes and desires? Isn't there a very good reason that a woman can't consent to an adoption until after the baby is actually born? Should gestational carriers be afforded similar protections, if only in terms of having limited visitation rights if they want them? Is this a scenario where "open adoption" could be a model (i.e. where the intended parents get the baby, but the surrogate has the right to continued contact of some kind)? I don't have answers to these questions. Nor am I sure that clear "answers" exist. What I know is this: I intend to continue fighting hard for my clients involved in the surrogacy process, while I also continue to grapple with issues such as these, which once seemed so easy.... Happy New Year!


  • This is a comment from an interested party, in your musing. I am a gay man, who has been with my partner for 7 years. Here in Australia, gay couples have no right to adoption (gay marriage is also illegal here; we travelled to Canada to do it.), and my partner and I are coming to the United States this year to do the surrogacy thing. This is our opportunity to fulfill our dream of being parents, at great cost mind you.

    Your ethical and philosophical concerns interest me, because I (as a radiologist), together with my partner (a property lawyer), have considered long and hard over the issues of surrogacy. The propoganda from the various surrogacy agencies give us the "surrogate child is born in the hearts and minds of the parents" as the core philophy behind that of the surrogate. And I must say, the surrogate women are amazing people; to be able to give such a priceless gift, I can only imaging how difficult it must be, to seperate one's own natural maternal instincts toward the child that they have carried.

    The answer to the question of maternal rights of the surrogate in my opinion lies in the negotiation to begin with.

    I hope in my travels to the States this year to meet a surrogate, who has a family of her own, and does not feel the need for any extra of her own. To change the rights of the surrogate to the child, I think is not relevant in this "ideal case" where there is no motivation to be a mother but a surrogate. I think to change this underlying principle, in law, would make surrogacy impossible, and for us anyway, destroy any hope of being parents.

    By Blogger John in OZ, at 5:57 AM  

  • John --

    Thanks for taking the time to respond to my post!

    I understand that creating a situation where the parents would have to share custody with the surrogate would make surrogacy untenable for many -- but that wasn't my musing. My musing was that maybe the surrogate should be guaranteed limited visitation -- continued contact of some kind -- if she wants it. Would this really make surrogacy impossible for families such as yours??

    I think we can learn a lot from the adoption world here. Many, many years of adoption research have established that -- as a rule -- "open" adoption, where the adoptees have a right to information about, and limited contact with, their birth parents, works best in the long run. My thought is that a similar model could potentially meet everyone's needs in the context of surrogacy.

    What say you....?

    Deborah Wald

    By Blogger Deborah Wald, at 9:00 AM  

  • Indeed, I agree with you, and perhaps I misunderstood your proposition.

    As a parent hopeful, I think the concept of gay parenthood is at the frontier. We are pioneers. Pioneers, that by our very nature of becoming parents through medical science, in many ways is redefining the concept of family.
    I take your point about the research with open adoptions, working best in the long run, and agree. I think the idea of the surrogate having the right to limited access and the adoptees\surrogate child having knowlege about their birth mother as a model is a good one. I agree in that it is the right of the CHILD (as opposed to the surrogate) we are discussing. To have knowlege of, and visitation from the surrogate will provide the child with the knowledge of their "birth mum" (crudely, I believe every child deserves a mother). I hope that the surrogate that chooses us will have some interest in visitation. However, what happens if the surrogate does not want contact\visitation? Am I only guessing this to an uncommon situation?

    If "family" means that there are two gay parents and a surrogate mum who has rights of visitation guaranteed, and that is how it is agreed; TO BEGIN WITH, I am all for it.

    I just think (and I am not saying it is a right or wrong proposition, just that it is murky waters) that access/parenthood to the child should be "born" with the child in contract or negotiation prior to prevent the emotional and financial cost of future "visitation" battles - surely damaging for the "family", and perhaps mostly on the child. It seems that by reading case scenarios, things can and do go wrong. So complex and such a minefield!! My feeling is that if we are going to go about this creating life, we need to bo bold and to be sure - and final, about our plans and our decisions. So, the decision to parent or surrogate (with or without visitation access) should also be final and bold, defining the proposed "family", whatever it may be AT THE BEGINNING.

    Oh well! I am still open on the issue, and I thank you for encouraging me to consider the ethics and complex legalities!
    Are you interested in taking us as your clients?

    By Blogger John in OZ, at 5:20 AM  

  • John --

    This is truly fascinating stuff, and definitely at the frontier of family law. Yes, we are redefining what we mean by "parent" as we create our families. And in my experience, it is much more common for birth mothers -- in either the surrogacy or adoption context -- to think they will want continued contact with the child and then find it too awkward or too painful and end up wandering off, then for them to end up wanting more contact than they'd anticipated.

    I would be very glad to talk with you, although I'm only licensed to practice law in California. Call or e-mail me if you're ever planning on being in this area, and we can get together! (I can always be reached through my website: www.waldlaw.net.)


    By Blogger Deborah Wald, at 10:52 PM  

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